06-000881GM Diane Brown And Panhandle Citizens Coalition vs. Department Of Community Affairs Status: Closed DOAH Final Order on Monday, July 14, 2008.

Summary: Sanctions under 57.105 awarded in the amount of $250, plus interest.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIANE BROWN and PANHANDLE )

CITIZENS COALITION, )

)

Petitioners, )

)

vs. ) Case No. 06-0881GM

)

BAY COUNTY and DEPARTMENT OF COMMUNITY AFFAIRS, )

)

)

Respondents, )

)

and )

)

ST. JOE COMPANY and CLARA AVENUE, LLC, )

)

)

Intervenors. )

)

FINAL ORDER ON SANCTIONS

On September 11, 2007, a lengthy Order on Requests for

Sanctions was entered in this case. It granted some requested

sanctions, denied others, and retained jurisdiction to allow the

parties to "file their agreement as to the reasonable amount of

attorney's fees and costs and sanctions to be awarded; . . .

submit the matter for determination on affidavits; or . . .

request the scheduling of a hearing for purposes of determining

the matter." Subsequently, all matters regarding sanctions were

resolved by agreement except for the amount of the sanction

( i.e. , a reasonable attorney's fee) to be imposed for the part of

paragraph 38 of Ms. Brown's Amended Petition alleging a failure

to protect historic or cultural resources as to the Clara Avenue

Future Land Use Map (FLUM) Amendment. Since Clara Avenue and

Ms. Brown were not able to settle, agree as to the reasonable

amount of attorney's fees and costs, or agree to submit the

matter for determination on affidavits, the matter was scheduled

for a final hearing.

Initially, the matter was scheduled for a final hearing on

April 2, 2008. However, at Ms. Brown's requests, it was first

re-scheduled to February 7, 2008, and subsequently continued and

re-scheduled to April 29, 2008, which is when the final hearing

took place in Panama City.

At the final hearing, Clara Avenue called its counsel of

record, Michael Dickey, Esquire, as a fact and expert witness,

and called Jeffrey P. Whitton, Esquire, as an expert witness.

Clara Avenue also had its Exhibits 1 through 4 admitted in

evidence. Exhibit 1 was a redacted version of the Summary and

Detail Transaction File List of the Law Firm of Barron, Redding,

Hughes, Fite, Sanborn, Kiehn & Dickey, P.A. Exhibit 2 was a Fee

Calculation by Mr. Dickey. Exhibit 3 was a resume of

Mr. Whitton's qualifications as an expert. Exhibit 4 was the

transcript of the deposition of Michael Kamprath, former counsel

of record for Clara Avenue and former associate of Mr. Dickey.

No other evidence was presented at the hearing.

After the presentation of evidence and oral closing

statements, the parties' request to file proposed final orders by

May 23, 2008, was granted. The timely proposed final orders have

been considered in the preparation of this Order.

In addition to proposed final orders, other post-hearing

filings require rulings. On May 23, 2008, Ms. Brown filed a

Motion for Official Recognition of a response filed in an

unrelated circuit court case in which Mr. Dickey was seeking an

award of attorney's fees and costs. This Motion for Official

Recognition was opposed and is denied. On June 2, 2008,

Ms. Brown filed Exceptions to Clara Avenue's proposed final order

and another Motion for Official Recognition, this time for

official recognition of Mr. Kamprath's deposition testimony,

which already was in evidence. Clara Avenue did not oppose the

Motion for Official Recognition but filed a Response to the

Exceptions on June 4, 2008. On June 10, 2008, Ms. Brown moved to

strike the Response. The next day she filed a Motion for

Official Recognition of Supreme Court Orders Suspending David

Russ from Practicing Law. The issues raised in those filings are

addressed to the extent necessary in this Final Order on

Sanctions.

FINDINGS OF FACT

1. Clara Avenue does not seek costs.

2. Clara Avenue's attorneys charged an attorney's fee based

on time spent at hourly rates of $200 for partners in the firm

(primarily Mr. Dickey), $150 for associates (primarily

Mr. Kamprath), and $65 for clerks and paralegals. These hourly

rates are reasonable. While the hourly rates may have been

somewhat conservative, there is no evidence that the fees charged

to Clara Avenue were discounted.

3. Counsel for Clara Avenue did not keep track of time by

issue, and the law firm's time records do not show time spent

specifically on the part of paragraph 38 of the Amended Petition

alleging a failure of the Clara Avenue FLUM Amendment to protect

historic or cultural resources. This was not unreasonable. It

is not customary to keep time records on specific issues raised

in a case, and the need for such records was not reasonably

foreseeable.

4. In lieu of calculating a reasonable attorney's fee from

time spent specifically on the part of paragraph 38 of the

Amended Petition alleging a failure of the Clara Avenue FLUM

Amendment to protect historic or cultural resources, Clara Avenue

seeks one-sixteenth of the total reasonable attorney's fee for

counsel's entire representation on this matter, at least up to

the entry of the Order on Requests for Sanctions on September 11,

2007. Clara Avenue's rationale for using this ratio is that

paragraph 38 of the Amended Petition was one of sixteen numbered

paragraphs of the Amended Petition litigated by Ms. Brown in the

underlying proceeding.

5. Using the one-sixteenth ratio calculation, Clara Avenue

seeks payment of $5,325.59 for attorney's fees through the entry

of the Order on Requests for Sanctions on September 11, 2007,

plus $337.04 of statutory interest through April 29, 2008, the

date of the final hearing on the fee amount determination.

6. Assuming the reasonableness under the circumstances of

proving the amount of a reasonable attorney's fee to be imposed

as a sanction for one of several claims by a pro rata share of

the total reasonable attorney's fee, Clara Avenue's calculation

had flaws and, in any event, resulted in the calculation of an

excessive amount of attorney's fees to be imposed as a sanction

in this case.

7. First, while paragraph 38 of the Amended Petition may

have been one-sixteenth of the claims raised by Ms. Brown in the

Amended Petition, protection of historic and cultural resources

was only one of ten issues raised in that paragraph. For that

reason, using Clara Avenue's rationale, the more appropriate

ratio to use would be one-sixteenth times one-tenth, or 1/160.

8. Applying that 1/160 ratio to the total reasonable

attorney's fee through the Final Order in the underlying

proceeding, which Clara Avenue calculated to be $71,000 on an

hourly rate basis, would result in the calculation of reasonable

attorney's fee in the amount of $443.75.

9. However, even that amount would be excessive. First,

the evidence was that some, if a small amount, of the time

counted and figured in Clara Avenue's calculation of the $71,000

was spent on matters clearly unrelated to the underlying

proceeding. Second, other time counted and figured in

calculating the $71,000 clearly was spent on other specific

issues. This time should not have been included in a total of

time spent on the case in general to be divided by an appropriate

ratio. After making adjustments for the foregoing evidence, the

more appropriate calculation of a reasonable attorney's fee

through the Final Order in the underlying case would be reduced

to $389.53.

10. Although $389 is a miniscule portion of the total

reasonable fee of $71,000, there are other reasons why it would

be a more reasonable attorney's fee than the $5,325.59 claimed by

Clara Avenue for litigating the part of paragraph 38 of the

Amended Petition alleging a failure to protect historic or

cultural resources. First, the time records of Clara Avenue's

attorney's did not indicate any time specifically devoted to the

issue. Moreover, counsel for Clara Avenue could not recall any

time being spent specifically on the issue. Clearly, the case

was mostly, if not entirely, about the other issues raised and

litigated, for which sanctions were not imposed.

11. Mr. Whitton suggested that the higher fee requested by

Clara Avenue was justified because Ms. Brown benefited from

economy of scale. In other words, he testified that an even

higher fee would be justified if Ms. Brown's case had been tried

only on the one issue of protection of historic or cultural

resources. But it is very unlikely that the case would have been

tried through and beyond final hearing solely on that issue, in

light of its relative unimportance in the case.

12. The evidence was that counsel for Clara Avenue recorded

a substantial amount of time spent on the case between the entry

of the Final Order in the underlying proceeding on April 3, 2007,

and the entry of the Order on Requests for Sanctions on

September 11, 2007, which resulted in another $14,209.50 of

attorney's fees at the firm's reasonable hourly rates. Clara

Avenue also seeks one-sixteenth of that amount-- i.e. , another

$888. However, at the 1/160 ratio, the claim would be reduced to

$88.80, for a total reasonable attorney's fee of $478.33. Based

on all the evidence, it is found that it is appropriate to round

this amount to $500.

13. Clara Avenue also seeks approximately $5,500 in

attorney's fees for time spent litigating the amount of a

reasonable attorney's fee to be imposed as a sanction, after the

entry of the Order on Requests for Sanctions on September 11,

2007, which established entitlement.

CONCLUSIONS OF LAW

14. When it has been determined that sanctions should be

imposed under Section 57.105, Florida Statutes (2007), for only

one of several claims, and it is reasonable and customary not to

keep specific time records by issue, failure to keep such records

does not defeat the claim for sanctions. Cf. Hatcher v. Roberts ,

538 So. 2d 1300, 1301 (Fla. 1st DCA 1989)(complex nature of the

work on the case provided ample explanation for the lack of

specificity in the record of time spent on the various parts of

the case). Where an allegation sanctioned under Section 57.105,

Florida Statutes, is intertwined with other allegations not

sanctioned, a proportionate amount of fees attributed to the

sanctioned allegation is appropriate under some circumstances.

See Franzen v. Lacuna Golf Limited Partnership , 717 So. 2d 1090,

1093 (Fla. 4th DCA 1998)(awarding fees proportionately against 64

individual plaintiffs, where time records were not broken out

among them). However, an award must be based on competent,

substantial evidence. See Yakavonis v. Dolphin Petroleum, Inc.,

934 So. 2d 615, 618 (Fla. 4th DCA 2006); Weatherby Associates,

Inc. v. Ballack , 783 So. 2d 1138, 1141 (Fla. 4th DCA 2001).

Moreover, the award cannot be excessive. See Florida Patient's

Compensation Fund v. Rowe , 472 So. 2d 1145, 1150-51 (Fla. 1985).

In this case, the attorney's fee requested by Clara Avenue was

excessive.

15. A reasonable attorney's fee can be awarded for time

spent litigating entitlement to the award, but not for time spent

litigating the amount of the award. See Barron Chase Securities,

Inc. v. Moser , 794 So. 2d 649 (Fla. 2d DCA 2001). In this case,

that means a reasonable attorney's fee should be awarded only for

time spent through the entry of the Order on Requests for

Sanctions on September 11, 2007.

16. Prejudgement interest accrues on attorney's fees from

the time entitlement is fixed through agreement, arbitration

award, or court determination, even though the amount of the

award has not yet been determined. See National Portland Cement

Company v. Goudie , 718 So. 2d 274, 276 (Fla. 2d DCA 1998). In

this case, prejudgment interest should be awarded on the $500 at

the statutory rate from the entry of the Order on Requests for

Sanctions on September 11, 2007.

17. Under Section 55.03(1), Florida Statutes, each year

Florida's Chief Financial Officer sets the legal rate of interest

on judgments. For judgments entered in 2007 (and 2008), the

legal rate of interest on judgments is 11 percent per annum, or

0.0003014 per day. See Chief Financial Officer's website:

http://www.fldfs.com/aadir/interest.htm.

18. Ms. Brown points out that, under Section 57.105,

Florida Statutes, the sanction is to be imposed in equal parts

against her and her former attorney, Ralf Brookes. Clara Avenue

contends that the imposition of a sanction against Mr. Brookes is

not appropriate. However, the appropriateness of imposing

sanctions against Mr. Brookes was determined in the Order on

Requests for Sanctions on September 11, 2007, which was not

appealed by Mr. Brookes. On October 10, 2008, Mr. Brookes moved

to apportion, limit, or reduce the sanction to be assessed

against him, but he also gave notice of his settlement with Clara

Avenue, and later withdrew from further participation. In any

event, Ms. Brown is correct that only her equal part of the

sanction-- i.e. , $250--should be imposed against her.

19. Ms. Brown also contends that, under Section 57.105,

Florida Statutes, sanctions should be imposed against David Russ,

an attorney now suspended from practicing law, who while still

licensed and authorized to practice law, acted as an expert land

use consultant and witness for Ms. Brown in the underlying

proceeding. However, Mr. Russ never acted as an attorney for

her, and the Order on Requests for Sanctions entered on

September 11, 2007, imposed no sanctions on Mr. Russ, and it

would be contrary to the statute to further reduce the sanction

imposed on Ms. Brown by shifting an equal part to Mr. Russ. (It

also would be a violation of due process to impose a sanction

against Mr. Russ in this Final Order on Sanctions.)

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that Diane Brown pay Clara Avenue $250 as a

reasonable attorney's fee to be imposed as a sanction under

Section 57.105, Florida Statutes, for litigating the part of

paragraph 38 of the Amended Petition alleging a failure of the

Clara Avenue FLUM Amendment to protect historic or cultural

resources, together with statutory interest on that amount from

September 11, 2007.

DONE AND ORDERED this 14th day of July, 2008, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of July, 2008.

COPIES FURNISHED :

Diane C. Brown

241 Twin Lakes Drive

Laguna Beach, Florida 32413

Terrell K. Arline, Esquire

Bay County Attorney's Office

810 West 11th Street

Panama City, Florida 32401

Daniel H. Cox, Esquire

Daniel H. Cox, P.A.

Post Office Drawer CC

Carrabelle, Florida 32322-1229

Michael P. Dickey, Esquire

Barron, Redding, Hughes, Fite,

Sanborn, Kiehn and Dickey P. A.

Post Office Box 2467

Panama City, Florida 32402-2467

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order on

Sanctions is entitled to judicial review pursuant to Section

120.68, Florida Statutes. Review proceedings are governed by the

Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original notice of appeal with the Clerk

of the Division of Administrative Hearings and a copy,

accompanied by filing fees prescribed by law, with the District

Court of Appeal, First District, or with the District Court of

Appeal in the Appellate District where the party resides. The

notice of appeal must be filed within 30 days of rendition of the

order to be reviewed.